Security for Costs, and Waiting Too Long

I recently attended on a somewhat unusual motion. The case, a complex family matter with four parties, is between trial sittings. Three weeks of trial have already been heard, and two more are scheduled in the near future.

In this break between weeks of trial, my client was served with a motion for security for costs.

In Ontario, security for costs in family cases is governed by Rule 24(13) of the Family Law Rules. It sets out four basic factors which might lead to such an order. One of them, the simplest, is that the party resides outside Ontario, and this is the case for my party.

More important by far, however, is the requirement that the court make an order which is “just.”

In my matter — three weeks into a five-week trial — it is hard to fathom how any order for security for costs could be “just,” except on the most overwhelming evidence that my client is a scoundrel. (My client is not, for the record, a scoundrel. At least one of the other parties may well be; that is for the court to decide.)

If there were evidence of outrageous and insupportable behaviour, justifying a mid-trial order for security for costs, one might presume that the trial judge would have it. Having heard three painful, if necessary, weeks of evidence in this matter, the trial judge is ideally placed to find that a party is likely to lose the case and abscond with costs unpaid.

Interestingly, this motion was not brought before the trial judge. Even after I pointed out that it ought to be, it was brought to a regular Brampton motions list, and there it was heard and dismissed.

The chief case on mid-trial motions for security for costs in Ontario is Stefureak v. Chambers, 2005 ONSC 7890 (CanLII)In that matter — one of many battles between parties whose names crop up in many a caselaw search–the father commenced trial with two planned witnesses and, before mother’s evidence had even closed, was up to a planned seventeen. Mother sought security for costs on the grounds that fifteen new witnesses were obviously an attempt to drive up costs and ensure a Pyrrhic victory.

Notably, mother sought that order from the trial judge, who was in the best position to know the body of evidence.

The judge found, quite reasonably, that the concept of a mid-trial motion for security for costs created a high bar indeed, and that mother’s evidence did not clear it. Seventeen witnesses could well be absurd and a waste of time; they could also be necessary. Until their evidence began, the court could not assume the worst.

Overall lesson: think ahead. Bring your motion for security for costs early, and put your best foot forward in the materials. It’s not an easy motion to win at the best of times, but in the meritorious cases, it can be done.


Other notes from that motion:

  • If an earlier version of your motion was struck for lack of a particular document, make sure that document is contained in your new version
  • If you plan to bring the same motion twice, pay the costs in a timely fashion, not two years late and five days before the second go-round
  • If your argument is based on the difficulties of enforcing judgments in a particular locale, make sure you know whether there’s a reciprocal agreement for that jurisdiction or not

Molly Leonard

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